Reasons for the Rise of Imprisonment as the Predominant Form of Punishment in Western Europe in the Late Eighteenth to the Mid-Nineteenth Century
The Theories of Michel Foucault and Michael Ignatieff and their Critics
1. Introduction
Until the latter part of the 18th century, imprisonment was an exceptional punishment. Thus, for example, at the Old Bailey in London” imprisonment accounted for no more than 2.3% of the judge’s sentence is in the years between 1770 and 1774”.[1] In the following five years this figure had risen to 28.6%.[2] Before 1775, major crimes were punished in England with banishment, whipping, hanging, or the pillory.[3] In France during the 17th and most of the 18th century, imprisonment was not considered by the criminal law as a punishment recognised by the civil law, it was primarily, and subject to exception in specific local areas, considered a form of physical containment or applied as a substitute for a punishment women and children could not undergo such as galley service. And yet in the French Penal Code of 1810 imprisonment in its various forms was the only punishment recognised between fines and capital punishment.[4]
Explaining the reasons for the dramatic rise of the prison as the principle means of punishment in the penal systems of the major European systems of justice from the late 18th to the mid-19th century has been the focal point of a number of studies in penal history, not least because of the continuing dominance of this form of punishment the present day. In this essay, I will first summarise the reasons advanced by Michel Foucault and Michael Ignatieff in relation to France and England respectively during this. period, secondly I will critically evaluate their persuasiveness in the light of other studies on the subject and finally provide a conclusion on the basis of these studies.
2. The studies by Foucault and Ignatieff.
In Part II of Discipline and Punish, Michel Foucault charts the reasons behind the decline in the use of torture as a means of punishment leading to its replacement in the new penal legislation of 1791 with a system of punishments which, while it took account of the rational principles established by the penal reformers of the 18th century and in particular Cesare Beccaria (1738-1794),[5] was principally determined by the views and interests of representatives of the “legal machinery” (81-82). However, the new principles upon which the legislation was founded – ‘of specific, appropriate, effective penalties, constituting, in each case, a lesson for all’ - cannot by themselves explain the rapid expansion of the use of prison, so that by 1819 the French prison population had risen to 40-43,000 or, nearly 1 per 600 of the total population (116). Indeed, Foucault points out that at the time of the reforms there was significant opposition to any wide-scale use of imprisonment precisely because it failed to respect these principles (114-15). In addition, Foucault argues that to gain acceptance the use of prison as a punishment had to change its legal status and overcome its legacy of association with monarchical tyranny, particularly through the use of lettres de cachet, which had enabled the French king to imprison a person without trial for indefinite periods.[6]
Foucault explains the predominance of the prison over competing forms of punishment as arising not principally from the methods of the penal reform movement, which he considers operated in the case of physical punishment at the level of treating the individual offender for himself and the spectator as an ‘object of representation’ and the individual punishment thus having to ensure the ‘process of redefining the individual as subject of law’ (128), but rather according to Foucault through the possibilities imprisonment allowed for the application of techniques of discipline to coerce the body and the soul of the prisoner in a secret and autonomous system that was incompatible with the principles of transparency and publicity espoused by the reformers. Foucault examines similar techniques of disciplinary power being applied at the same period in the workplace, the army, the school, the hospital and the psychiatric hospital and linked this phenomenon to the growth of population in the 18th century and the rise of capitalist forms of production which required a docile and efficient population. As Foucault rhetorically summarised: “Is it surprising that the cellular prison with its regular chronologies, forced labour, its authorities of surveillance and registration, its experts in normality, who continue and multiply the functions of the judge, should have become the modern instrument of penalty? Is it surprising that prisons resemble factories, schools, barracks, hospitals, which all resemble prisons?” (227-28). As a result, prison from the beginning of the 19th century “covered both deprivation of liberty and the technical transformation of individuals” (233).
In A Just Measure of Pain, Michael Ignatieff examines developments that occurred in penitentiary practice in England during the period 1775 to 1840 but from a different perspective from that employed by Foucault.[7] Ignatieff places much greater emphasis than Foucault on an analysis of the role played by specific historical events and actors in the development of the penitentiary system in England after 1775. Thus, events such as the crime wave which followed demobilisation after the end of the war of Austrian succession in 1748 and the suspension of transportation following the outbreak of the war of American independence in 1776, when combined with the reformers theory of the penitentiary developed by “nonconformist doctors, philanthropists, and magistrates in London and the manufacturing towns” in support of John Howard's reform movement,[8] provided the impetus that led to the rapid expansion and development of the prison system (79).
For Ignatieff the reformers won support for the penitentiary from their class because they “succeeded in presenting it as a response, not merely to crime, but the whole social crisis of a period, and as part of the larger strategy of political, social and legal reform designed to re-establish order on a new foundation” (210). This approach led Garland to classify Ignatieff’s text, if not as Marxist, at least as “congruent with the Marxist model”.[9] However, this is an oversimplification of Ignatieff’s arguments, which in part closely follow Foucault’s by identifying the important role played by the ‘routinization of the body’ (72) and the techniques of discipline in the penitentiary being a ‘new rite’ (105) which was played out in private away from the public arena, as well as developing the idea that society reflected a more compassionate face.
3. Critics of Foucault and Ignatieff
Foucault and Ignatieff’s explanations for the development of imprisonment as the primary form of punishment have been the subject of criticism, most particularly the work of Foucault.[10] It is important, however, in considering these criticisms to identify the scope of Foucault's and Ignatieff’s respective accounts. While Foucault primarily limits his study to France, the arguments he develops are clearly of wider application as he frequently points to the similarities of developments in Western nations (13-21). His central thesis about the application of disciplinary power as a means of control can be, and is by Foucault himself, applied to modern penal practices. It is, therefore, not only an historical account but an explanation of the function prison plays in society at an ideological level. Ignatieff’s approach by contrast is expressly focused on the ‘new philosophy of punishment’ (xiii) developed in England during the period 1775 to 1840. As a result, the conclusions he draws in his concluding chapter for present penal practise lack the generality of Foucault's explanation for the continued existence of the ‘carceral network’ throughout the Western world (Discipline and Punish 293-308).
One particular area of criticism of Foucault has been to contest the historical accuracy of his account of penal developments underpinning his theory explaining the decline of physical torture and public execution and the rise of the prison system. For example, Spierenburg, on the basis of his study of penal history in the Dutch Republic in the 17th and 18th century, refutes Foucault's argument that “the ‘political danger’ imminent in public executions” was one of the principal factors that led to their demise.[11] Rather he argues, following in the tradition of Norbert Elias,[12] that the change in method of punishment is better explained historically by the transition from the early modern state, which because of its instability needed the public spectacle of execution to assert its authority, to the 19th century state which was sufficiently secure to transfer punishment of offenders ‘indoors’. In Spierenburg’s analysis there was no such sudden shift as posited by Foucault at the end of the 18th century from public executions to the prison system, rather the two systems coexisted: “But the penitentiary cannot be considered as the successor to public executions. The observations of the present study make the conclusion inescapable, classical 19th century imprisonment represented an experimental phase contemporary to the last days of public executions” (206).
In the context specifically of French penal development, Nye points out that the development of the type of cellular and panoptical prison systems on which Foucault based his theory was never completed in the 19th Century and indeed was abandoned during the period 1850 to 1870: “Louis Napoleon abruptly terminated the quasi-legal experiment in cellular imprisonment shortly after assuming the Presidency. He preferred the financial, hygienic and colonialisational benefits of criminal transportation to the penitentiary regime of the liberals”.[13] However, despite sharing doubts over Foucault's board brush historical method, Nye supports Foucault's theoretical analysis of the ways in which power is distributed in society to effectively discipline and control those who violate social norms (12).
Ignatieff’s account of the rise of imprisonment needs to be considered in the light of Beattie’s examination of penal practises in England during the period 1660 to 1800, particularly on the basis of his analysis of records relating to indictments for crimes against property in Surrey.[14] While Beattie’s explanation for the rise of imprisonment as the “main form of punishment in England” when “transportation came suddenly to an end in 1776” (520), shares many of the themes in Ignatieff’s account - the significance of the penal reform moment, the influence of the publication of a translation in 1767 of Beccaria’s Of Crimes and Punishment in establishing the idea of proportion in punishment – there are significant differences in emphasis.
Firstly, Beattie emphasizes that in the period 1750-1775 there was considerable pressure – both Parliamentary and by magistrates and writers such as Henry Fielding (1704-1754)[15] – for increased severity in the application of capital punishment, and that this led to a continued high level of execution in the period, exacerbated by hanging in chains and dissection of the corpse after execution. Secondly, Beattie emphasizes to a much greater extent than Ignatieff the crucial role played by transportation as an alternative both to capital punishment and imprisonment in English penal policy: “the fundamental break with the penal practises and penal intentions of the past came with the introduction of transportation in 1718 as much as with the establishment of imprisonment in the last decades of the century” (620). Finally, Beattie locates the rise of a movement in favour of the increased use of imprisonment combined with hard labour as early as the 1720s, partly by reference to continental practices such as the Rasphuis in Amsterdam, a prison established with the purpose of rehabilitation of the young male inmates,[16] and partly connected with the loss of faith in transportation as an effective deterrent increasingly being expressed early as the 1720s. Beattie thus modifies Ignatieff’s emphasis on the role of the late 18th Century reform movement, and in particular John Howard, and the consequences of the suspension of transportation with the outbreak of the American war. However, his analysis of the reasons for the rapid rise in the use of imprisonment after the Penitentiary Act of 1779 follows closely the analysis of both Foucault and Ignatieff.
4. Conclusion
In analysing the reasons for the dramatic rise of imprisonment in France and England at the end of the 18th century, two factors are common to the account of both Foucault and Ignatieff and indeed the other authors considered. Firstly, the influence of the writings of Beccaria and subsequent penal theorists in establishing the requirement for proportionality and certainty as a precondition for establishing an effective deterrent system of punishment as well as reformation of the offender as a primary function of penal policy. Secondly, an influential and growing body of informed opinion by the end of the 18th century in the major European held that the public and violent expression of sovereign power in the form of capital punishment and other forms of physical punishment no longer effectively served the purpose of general deterrence and indeed could be counter-productive by focalising public resentment against the prevailing order.
These factors prepared the ground for an increased role for imprisonment and a reduction in the use of alternative punishments since imprisonment, at least when combined with hard labour, satisfied these requirements. However, these factors alone cannot explain how imprisonment eventually overcame the significant resistance to its general implementation as the dominant form of punishment - not least in terms of expense. Here lies the great merit of Foucault's theory, since by focusing on the process by which discourse was created in the late 18th century to which discipline could be applied in a variety of social domains, including the prison, he enabled the development of the prison to be seen as part of a general dynamic operating at all levels of society rather than as an isolated and country-specific occurrence (Nye 11).
While the specific penal traditions and historical circumstances of each country dictated the pace and extent of the process, there is no dispute that a similar and dominant trend emerged in Europe and the United States by the end of the 19th century which led to the predominance of the use of imprisonment in penal policy. It also explains why Foucault's theory, rather than the more localised explanations of Ignatieff and other penal historians, has had the greater resonance and relevance for modern penal theory. In this context, the historical criticisms of Foucault's work, while important in qualifying some of his arguments and in correcting the sequence of historical developments in penal practices in specific countries,[17] have not invalidated his theoretical position.
Any attempt to reduce substantially the role of the prison in modern society and develop alternative forms of punishment will need to address the issues raised by Foucault since the barriers to change are not simply institutional or a result of penal policy but are embedded in the discourse employed at all levels of society. A new rupture in the prevailing discourse will be required as radical as that which occurred at the end of the 18th century and which normalised the use of imprisonment as the predominant form of punishment over the public spectacle of suffering.
Bibliography
Beattie, J.M. Crime & Courts in England 1660-1800. Princeton UP, 1986.
Garland, David. Punishment and Modern Society: A Study in Social Theory. U. of Chicago Press, 1990.
Foucault, Michel. Discipline and Punishment: The Birth of the Prison. Translated by Alan Sheridan, Penguin, 1977.
Ignatieff, Michael. A Just Measure of Pain: The Penitentiary in the Industrial Revolution. 1750-1850. Pantheon Books, 1978.
Nye. R.A. Crime, Madness and Politics in Modern France. Princeton UP, 1984.
Spierenburg, P. The Spectacle of Suffering. Cambridge UP, 1984.
[1] Ignatieff, A Just Measure of Pain, p.15.
[2] Idem, p.81. Ignatieff attributes this sudden sharp rise in England in this period as due to the outbreak of the American war of independence in 1775 and the end of transportation to the American colonies which resulted.
[3] Idem, p. 24.
[4] See Foucault, Discipline and Punishment, p.115.
[5] Beccaria’s Essays on Crime and Punishment was published in 1764 and translated into French in 1765 with the enthusiastic support of Voltaire (William Doyle, The Oxford History of the French Revolution, Oxford UP, 1990, 55).
[6] The most notable example of such a prisoner being the Marquis de Sade (1740-1814) - see Citizens : A Chronicle of the French Revolution by Simon Schama, Knopf Doubleday, 1990, 391-93.
[7] Ignatieff’s A Just Measure of Pain was published in 1978, three years after Discipline and Punishment was first published in France (Surveiller et punir: Naissance de la prison) but Ignatieff makes only one reference to that work, 220.
[8] John Howard (1726-1790) was a penal reformer after whom is named the modern Howard League for Penal reform: https://howardleague.org/john-howard/. In 1777 his The State of the Prisons was published and Ignatieff attribute its enthusiastic reception to the favourable climate for reform engendered by the American war, 65.
[9] David Garland, Punishment and Modern Society, 26.
[10] For an extensive summary of criticisms of Foucault’s historical claims and theory of discipline, see Chapter 7 of Garland’s Punishment and Modern Society.
[11] P. Spierenburg. The Spectacle of Suffering, 108-109.
[12] Norbert Elias. The Civilizing Process. Translated by Edmund Jephcott, Wiley, 1994.
[13] R.A. Nye. Crime, Madness and Politics in Modern France, 34-37.
[14] J.M. Beattie. Crime & Courts in England 1660-1800.
[15] But on Henry Fielding’s role as a driver of penal reform, see: Zirker, Malvin R. “Fielding and Reform in the 1750’s.” Studies in English Literature, 1500-1900, vol. 7, no. 3, 1967, 453–65. JSTOR, https://doi.org/10.2307/449601.
[16] See: Ellin, Thorsten. Pioneering in Penology: The Amsterdam Houses of Correction in the Sixteenth and Seventeenth Centuries. University of Pennsylvania Press, 1944. JSTOR, http://www.jstor.org/stable/j.ctv4s7j4b.
[17] See, for example, Janet Semple’s rebuttal of aspects of Foucault’s treatment of Jeremy Bentham’s Panopticon proposals, “Foucault and Bentham: A Defence of Panopticism”, Utilitas, Vol. 4, No. 1, May 1992, 105-120.